Bush and Folger on Reclaiming Mediation’s Future

Richard “Dusty” Rhoades is a mediator, facilitator and trainer with the Community Mediation Center of Calvert County, Maryland, and also an associate of Louise Phipps Senft’s Baltimore Mediation. Dan Simon, M.A., J.D of Simon Mediation provides mediation of all types of dispute in Minnesota and Los Angeles. Both have been certified as Transformative Mediators by the Institute for the Study of Conflict Transformation.

Dusty: One of the many things that Baruch Bush and Joe Folger have contributed to the mediation community is the stimulus to engage in difficult conversation about how we support participants in conflict. What informs our practice? What does it mean when I say that I’m committed to participant self-determination? Baruch and Joe’s recent article on Reclaiming Mediation’s Future and their challenge to return to “an original vision of the mediation field” has certainly stimulated conversation and strong reaction.

Joe and Baruch, or any committed and competent transformative mediator, do not seek to require parties to use transformative mediation. Transformative mediation maximizes party self-determination from the first moment a party interacts with the mediator. When I receive a phone call from a potential client, I answer their questions consistently with my belief that that person can and should make her own choice about whether to work with me. I don’t know whether her working with me will be helpful, harmful or neutral. Although it has often appeared to me that my efforts have been helpful to clients, I have no way of knowing that I’ll be helpful to this particular client. So I answer her questions without the agenda of getting her to hire me.

Dusty: I agree. When the participants sit down at the table, they know what they are getting and what they are not getting. They know they are in charge of the process and the outcome. They decide where to sit, how they will have their conversation (with guidelines or not) and who begins. They understand that the experience they will have may look different than past experiences with another mediator. As transformative mediators, our focus is not on resolving the dispute. Our focus is on supporting the interaction, so they can become more clear, more empathetic and able to make decisions in their own best interest whether those decisions include resolution or not. Even though transformative mediators are not focused on agreement, our Southern Maryland Community Mediation Centers have as high an agreement rate as any of the other (non-transformative) CMCs in the state. And participant evaluations confirm that nearly all participants are satisfied with the process, whether they reached agreement or not.

What about Sam’s statement that, “Bush and Folger’s paradigm appears unable to accommodate those who mediate differently.”

Dan: It’s true that Joe , Baruch and I have ideas about what mediators should do. As Baruch and Joe said in the article Sam criticizes, we do believe that many mediators actively undermine party self-determination. We are very concerned about party self-determination. We want parties to be free to decide everything, including whether they do mediation, when they do mediation, who their mediator is, how the process goes once they’ve started it, and/or what other processes they pursue, if any.

Sam seems to be advocating for mediator self-determination, while Baruch and Joe were talking about party self-determination. I can understand Sam’s frustration at being told that he shouldn’t play the expert when mediating, or that he shouldn’t use other directive techniques. He, like our clients, doesn’t want his autonomy undermined. If he were my client, I wouldn’t undermine his self-determination by criticizing his approach. But when I’m talking to fellow mediators about mediation, I feel free to share criticism and perspective. In Sam’s article, he said participants TELL him they want him to be directive. But as he says in his article, clients at some level want us to be “be facilitative with them, be evaluative of the other side’s drivel, and transform their opponent into a reasonable person”. But we don’t and can’t honor those desires, right? It’s impossible to serve ethically in our role and honor a party’s desire that we evaluate the other side, but facilitate them. Similarly, it’s impossible for me to honor the request of a client who has both asked me to mediate and asked me to tell them what to do. The two concepts are mutually exclusive. The transformative approach requires us to keep every possible decision, including decisions about what happens in each moment of the process, in the hands of the parties. I don’t think it’s possible for me to control the process without also having a huge impact on the outcome.

Dusty: I agree. All mediators say they support self-determination. As transformative mediators, we’re dedicated to it. We don’t control the process, although we recognize the natural stages of conflict transformation and support the participants as they work through the stages in any manner most comfortable to them. We don’t soften or reframe conflict talk. We follow and reflect the participants’ conversation, giving them the opportunity to hear each other and/or edit their own remarks. We summarize their areas of agreement and disagreement without nudging them or leading them in a particular direction that we think will be helpful.

We strive to ensure that each of our interventions is consistent with transformative theory. As mediators who practice in the transformative orientation, we are sometimes viewed by our non-transformative colleagues as too narrowly focused and inflexible in our practice. We see it differently. As transformative mediators, we subscribe to a specific understanding of the nature of conflict, based upon the relational worldview. In keeping with that understanding, we have a well-articulated theory of conflict transformation as presented by Baruch and Joe in their seminal work, The Promise of Mediation 1. In accordance with that theory, we choose specific interventions to help participants identify opportunities for empowerment and recognition, highlight areas of agreement or non-agreement, and make whatever decisions they choose, if any. Also in accordance with that theory, we don’t impose structure and interventions that are common to other mediation orientations. We don’t expect other mediators to conform to our orientation, but it’s important that our practice remain consistent with this theory.

Let me take a step back for a bit. Sometimes, our field of mediation is so loosely defined that it’s difficult to be sure that we’re talking about the same thing. Sam and others who responded to Baruch and Joe’s article expressed concern about not including evaluation as part of mediation. In my state of Maryland, the Mediation and Conflict Resolution Office (MACRO) and the District Court ADR Office, both recognized leaders in the promotion and innovation of mediation practice for the public good, make a clear distinction between the broader category of ADR and the more narrowly defined sub-category of mediation. They recognize that pre-trial settlement conferencing and evaluation are legitimate and valuable ADR practices, but that they are simply not mediation. Great effort was put into defining four recognized categories of mediation: facilitative, inclusive, analytical and transformative.

It’s worth noting that the MACRO description for the Transformative Mediation Framework is the only one of the four orientations that does not subscribe, directly or indirectly, to a problem solving process. A colleague once suggested that, in the end, we’re all problem solving mediators. It’s just that we, as transformative mediators, believe that the “problem” is the diminished quality of the interaction between participants and not the issues they bring to the table. If they were interacting constructively, they would probably be able to solve the tangible problem on their own. So it’s not the $2000.00 still owed on the contract; it’s more about miscommunication, divergent expectations and broken trust. Therefore, we support participants in improving the quality of their interaction, helping them find the strength and clarity to resolve their own issues, or not, however they choose to do so.

While the MACRO definitions are helpful, they still leave a very large range of mediation practice to be considered. We interact with facilitative mediator colleagues who represent a wide range of practice. Many of these colleagues, like Sam, have significant experience and impressive credentials. Some offer many interventions that appear quite similar to those we might choose. Since those interventions are not based upon the theory we subscribe to, they are not used in the same circumstances or for the same reasons we would intervene. Others are quite clear that they will decide how and when participants may speak and then nudge or guide participants to an acceptable outcome in their own best interest. Within our theory of conflict and conflict transformation, that doesn’t fit our understanding of self-determination.

You’ve written a lot about transformative practice, Dan. Would you share some specific examples of how our interactions with participants as transformative mediators vary from other practices?

Dan: Certainly. I’ll give a couple of examples. First, we don’t set ground rules for the clients. This practice is an example of where a mediator’s attempts to solve problems interfere directly with party self-determination. In addition to explicitly telling parties how to conduct the conversation (thus diminishing their input about that), this practice conveys the overriding message that the mediator is the one who knows how to do this, and that the parties should not trust or follow their own instincts. Given that self-doubt is part of what happens in destructive conflict, the mediator’s reinforcement of that self-doubt can only worsen the situation as it undermines the parties’ self-determination.

Likewise, transformative mediators don’t ask a lot of questions. Some mediators may say that asking the right questions helps the parties think about their situation, their interests, and creative ways to solve their problem. Transformative mediators would say that every time you ask a question with that agenda, you are making a process decision – you are deciding that’s the question that should be focused on at that moment. We don’t want to make that decision for the parties. The transformative approach suggests that those very questions – the questions of what to think about and when – need to be in the hands of the parties. That’s self-determination.

Also, we try to reflect participants’ comments as close to their own language and intensity as possible. Many other mediators imagine that, if they can get the parties to see their problem differently, it will be easier for the parties to reach a settlement. So, in a family mediation, if parents are angrily arguing about which parent the children should live with during the school week, another mediator might say, “So I’m hearing that you have in common the desire to spend significant time with the children.” The mediator has attempted to change the question from “who will win the school week with the children?’ to “how will we share time with the children so that we each have significant time with them?” On a rational level, this change seems to make the problem more solvable, but it misses the heart of the conflict. At the heart of the conflict is each parent attempting to regain a sense of control. The mediator changing the focus can only contribute to the parties’ sense of loss of control. (The mediator’s reframe tends to shut down the conversation as the parties understand that the mediator is telling them what to talk about.)

The power of mediation lies in its ability to help clients do things because they want to, not because anyone told them to. Transformative mediation places autonomy at the heart of the process, where it belongs.

Dusty: Thanks, Dan. It seems to me that many mediators think of participant self-determination principally in terms of deciding whether or not to come to agreement and what the terms of agreement will look like. To get to that point in the mediation, they may feel it appropriate to use multiple forms of suggestion and/or persuasion to shape or guide the participants’ conversation to an outcome “acceptable to all”. Whereas we, as transformative mediators, tend to think of self-determination as party choice at every stage of the process, from start to finish.

Recent research commissioned by the Maryland Judiciary as part of its Statewide Evaluation of ADR found that “The more directing strategies are used, the less likely it is that participants will report the mediator listened to them and respected them. The more eliciting strategies are used, the more likely it is that participants will: Reach an agreement; Say the other person listened and understood; Become clearer about their desires; Say the underlying issues came out; and Become more able to work together.” 3

Joe and Baruch inspire us to continue the important conversation about self-determination, no matter how messy the discussion might be. They challenge each of us to continue to ask ourselves: What informs our practice? How could our interventions be more supportive of participant self-determination?

2 Mediation is a process in which a trained neutral person, a "mediator," helps people in a dispute to communicate with one another, to understand each other, and if possible, to reach agreements that satisfy everyone's needs.

A mediator can help you to reach agreements, build relationships and find solutions that work.

In mediation, you speak for yourself and make your own decisions. Mediators will not make decisions for you, provide any legal advice, or recommend the terms of an agreement. Mediation can help protect your privacy since, unlike courtroom proceedings which are open to the public, mediation is a confidential process. (http://www.marylandmacro.org/)

Biography

Dan Simon writes the blog for the Institute for the Study of Conflict Transformation. He is a national leader in the field of transformative mediation. He practices and teaches it in Saint Paul, Minnesota. He's trained mediators throughout the country for the U.S. Postal Service, the Institute for the Study of Conflict Transformation, and as an Adjunct Professor at the Hofstra University School of Law. He serves on the Minnesota Supreme Court's ADR Ethics Board, is the Immediate Past Chair of the Minnesota State Bar Association's ADR Section; and he serves on the Board of Directors of the Institute for the Study of Conflict Transformation. He has been the director of Twin Cities Mediation since he founded it in 1998. He helps with divorces, parenting differences, real estate issues, employment cases, business disputes, and neighbor to neighbor conflicts.

Vicki and Dusty Rhoades have been partners in life for 43 years and community mediators for the Community Mediation Centers of St. Mary’s and Calvert Counties for the past 12 years. They were instrumental in establishing both centers. They have conducted hundreds of mediations in a variety of conflict situations, including small claims and peace orders at the District Court, Maryland Commission on Civil Rights discrimination cases, Child in Need of Assistance (CINA) and Parenting Plan cases for the Circuit Court, among many others.

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